SEO Lawsuit - Marketing & SEO Discussion List

SEO Lawsuit

Written by Anonymous
November 13, 2006

Sued over SEO Work

I am caught between a rock and a hard place so it seems. Apparently I am being sued by a previous client because I have performed SEO duties for their competitor(s) and given them higher listings on SERPs that my previous client used to dominate. They're now somewhere near ~20 with competitors "taking away their business" up on ~3-15 spots. They seem to feel that these higher results were their's by right or something.

I work in a very narrowly defined niche, marketing SEO/M services to this market exclusively. It's never been a problem before. I tell potential clients flat-out what I do and who I may work for. Every incoming job is required to sign a non-compete so I can work for their potential competitors, too. I never have exclusivity with any of the clients I take on. It works because a lot of the optimization depends on a local element. My work is kind of spendy compared to your "run-of-the-mill" search optimization work. People know what they get, what they pay for and generally have pretty decent ROI. I'm not hurting for work, let's put it that way.

The client sueing me is whining about work done 4 years ago. After my services it's obvious nothing new was done and the site got stale. Then unfortunately for them I took on a few other clients in the exact same market and localized in the same area. This is what raised the red flag because their SERPs are heavily local-search dependent like most of my clients.

Am I compelled in any way to deal with this (namely pay them off)? I have an attorney but don't want to use her unless necessary (her rates are very high). Has anyone dealt with these kinds of things before. The client is pretty aggressive and I have to admit has already intimidated me (a little), and I've got thick skin from being in this industry awhile.

Guidance, input, advice appreciated.

[here's a special issue with lots of responses on this - LED Digest 2287: Special Issue - SEO Lawsuit]

[update: check out the discussions about this case at Threadwatch and Techdirt]

[update: the SEO decided to deal with this out of court for a "5-figure settlement." You can read the reasons why this SEO decided to settle out of court in a recent edition of LED Digest]

Comments (16) add comment

Bruce Clay said:

First, this is hogwash. Ranking is like market share -- maintain it or lose it. Ranking four years ago was based upon search engine algorithms then, and competition then, and the client site then, and their popularity and freshness then, and to retain rankings requires attention to this and more. Since rankings are search engine specific, just algorithm changes mandate site revisions to retain rankings. Evolve or die.

Second, four years ago? IMO there cannot be any reasonable expectation that you have given a guarantee that ranking then will last forever. If they stop paying you, except for contractual restrictions, you are free to continue your business and to earn a living. Unless you guaranteed that you would not work for a competitor for these four years, it is unreasonable to expect that you would abandon your right to prosper. They had the option to keep paying you, or to protect themselves with contracted terms, but without that they have no basis here. I am certainly not a lawyer, but in my personal opinion there is no reasonable expectation that you could not continue with your business established before they hired you long after they stopped your contract. I suspect the contract states your limitations and guarantees, and that is all that matters.

Third, and more important, this nuisance suit is setting a very bad precedent for the entire SEO industry. It is unreasonable on every level, and I for one do not want to see this client win by default, and for others to expect to do the same. I understand that it is easier to settle than to go to court, but as I understand it (check with your lawyer) in a nuisance suit your legal fees may be recoverable from them.

While I do not have a clear understanding of your contracted terms, this certainly appears unreasonable, and appears to be designed to harm you instead of recovering harm you did to them.

Cover my expenses and I will testify on your behalf as an expert -- call me.

November 13, 2006 | url

Tim Klimasewski said:

As a buyer of marketing services, I would be pissed (angry, not from over-consuming, for our UK friends) if a vendor did similar work for a competitor. In fact, I have a vendor sign a document that spells this out. It is completely unfair for you to develop specific knowledge on my dime and sell it to someone else. It will be viewed this way even if there is no relationship between the work you did for me and the competitor. The goal of the work was the same.

Certainly time passage strengthens your argument, but a judge may need to decide if 4 years is long enough.

However, you state that, "Every incoming job is required to sign a non-compete so I can work for their potential competitors, too." So what's the problem? You do the reverse of what I do. You clearly indicate that you have the ability to sell the same service to a competitor. It is a term of your service. Although I would not call it a "non-compete." That's what I do. It is more of a "free-to-compete." I would be happy to go in front of the judge with the piece of paper that says you told the original client exactly what you did and they hired you anyway. Why be intimidated. Get your lawyer and threaten to counter-sue.

Tim Klimasewski

November 13, 2006 | url

John Wagner said:

Don't sweat it too much. Been there, done that (in another field). Here is the score:

IF you are incorporated you will need an attorney to defend the corporation. IF you are not incorporated and just a guy doing what he knows how to do best, the law protects you. NO ONE can compel you to stop earning a living by doing what you are trained to do. Training does not mean anything formal like a school or anything like that, most of us webmasters learned the "art" by doing and if that is how you learned then that is what you are trained to do. OR you could have gone to Harvard and hold a PhD in SEO, same result. The point is that no one can compel another person to stop earning a living, either by law or by fact.

IF you are incorporated you do not need a high powered big shot expensive lawyer to defend you either, get a lawyer who charges modest fees to defend the corporation in front of a judge, simply present the case that this is your livelihood and it is my bet the whole case will be thrown out. If you are not incorporated you can defend yourself the same way, be prepared to prove to the court that this is your livelihood and you will have the same result.

So called non-compete agreements are rarely upheld even if you signed one as you do not have the right to give up your right to earn a living in the eyes of the court. Everyone has the right in this country to earn a living. EVERYONE.

And even if you try to relinquish that right the court will not allow you to do it. Keep a paper trail of every SEO transaction you do and every bit of contact the other side has with you. Save letters, emails, whatever. Record phone calls, state the time and date of the phone call on the tape and inform the caller that you are doing so. You can get records from the phone company showing the numbers that called you and who they belong to, match up your recordings with those IF it goes that far. Be prepared.

Do not be intimidated, many a lawyer knows you don't know jack about the law and they try intimidation tactics to get you to back down. Don't fall for that, stand strong. In fact, if they continue to harass you ask the civil court for a restraining order against them. If you want to go at it without a lawyer then you have to do your homework. It is not fair, but what in life is really fair?

If the other side's lawyer calls you, tell him nothing. You will never have to explain in a court of law what you don't say, only perhaps what you do say. So say nothing. Tell him you will meet him and court and hang up the phone. And then do that. Let the other guy run up the legal bills, you keep it short and sweet.

John Wagner

November 13, 2006 | url

TallTroll said:

Aaron Wall gots sued by a company for talking about their SEO services, and questioning it's value. He fought, and set up a PayPal account for donations - I think he ended up with enough to cover lawyers fees in 2 states, and had some left over.

There's no reason you couldn't do the same. I found this via Threadwatch, a highly influential SEO hangout (which Aaron 50% owns now) - get in touch with him. I'm sure he'll have some good, practical advice, can recomend some good lawyers, and can give you that which you most need, publicity

November 13, 2006 | url

Ivan Jimenez said:

First things first, you didn't get anyone results. The work you did along with many, many other factors including (but not limited to) design, popularity, freshness of content and non-SEO source code affected the way search engines "viewed" the sites but it was they (the search engines) that rank websites. Your first step is to fully understand this.

This will help you not only in this case, but in dealing with past, existing and future clients -- many seem to think SEO companies have a magic button that they can press to make their websites shoot to the top of the SERP, clearing this misconception will make you a happier, more stress-free marketer!

Ivan Jimenez

November 13, 2006 | url

Chris Nielsen said:

What you do is up to you, but if you set up a legal defense fund, I will make a (small) donation. I did so for Aaron Wall (SEO Book vs. Traffic Power) and your situation is not much different. I hate to see the legal system used as a means to blame another person for someone's problems. You may want to contact Aaron and others (www.chillingeffects.org) to help you decide what is best for you to do.

Since it sounds like you have positioned yourself well with disclosures and documentation, I think your case should be a slam-dunk in your favor, but I am not a lawyer, and you still have to deal with stress and the expense.

If you have documented copies of the site after the work was done 4 years ago and what it is now, it should be clear what really has and has not happened with the previous client's site. I would not expect most competitive rankings to hold well for more than a year in general, and it's the reason we don't worry about rankings in our SEO projects. I suspect getting a copy of their web traffic reports will indicate either that their site traffic really has not been hurt much, or that it's been down for a long time and they just now noticed the slip in rankings. It would be nice if we could optimize a few sites and drive a top-ranking competitor down about 20 spots, but are you really that good...? :-) Where were their rankings exactly just before you started working on the other sites?

If you decide to fight this misguided former client, you should document every detail and create a site about it (if your lawyer agrees). Your site will be well-optimized and may be found for many of the keywords that your former client is upset about, including their company name. I can contribute a few links from some of my sites. You can issue press releases and use other marketing methods to get your side of this story out there. Since lawsuits like this are all about degrees of "pain", you may not have a huge legal fund to fight with, but you can inflict marketing pain that should help level the playing field...

Good luck,
Chris Nielsen

November 13, 2006 | url

Mitch said:

There's absolutely no way you can lose a case like this. If they didn't do anything in four years to try to maintain their ranking, that's their problem. Also, there's not a non compete contract I've ever seen in business that goes longer than 3 years, let alone four years. Let them sue; if you're an independent now, then you can do as you please. Weasels! I almost wish you'd name the client so we could boycott them.

November 13, 2006 | url

jfj3rd said:

I too would hate to see this client win such an ugly case. Bruce Clay said it best, “this nuisance suit is setting a very bad precedent for the entire SEO industry.”

I would like to keep tracks of this suit and would be more then happy to provide a few links to the publicity end of the suit.

November 14, 2006 | url

Scott said:

A designer creates an ensemble for a movie star 4 years ago for a special event and says, based on the panotone color shart, glamour, vogue, etc. these are the trends that most stars are following in order to get picked as a fashion icon rather than a "fashion don't" in most magazines, trade journals, etc.

The actor/actress claims 4 years down the road, this outfit is getting me laughed off the red carpet, I'll sue!!

===

You are an SEO, you know that the engines are fickle and that tastes change over time. SEO is a constant battle. Unless you signed on for constantly updating their site, maintaining something to keep the rankings up.. they should be thanking you that your old work has lasted so long!

November 14, 2006

Anonymous said:

I definitely sympathize with you and the dilemma you are facing. From a non-practicing attorney I can share some advice with you on some issues you are facing. Many people on this post are telling you to fight your way all through the court system. Then again they aren't the ones being sued, you are. If you have an andless cash supply and feel you can win then by all means do it. Don't forget about the years of stress this will take on you before it hits a courtroom or even settles.

I recently asked for a legal opinion on a complex matter and spent 22k in a matter of 3 months. Making matters worse I didn't get the answer I was looking for. You will be amazed at how fast a $400/hr attorney will eat you alive. You may feel you are completely right and you very well may be. If this is a matter of paying someone 10k or even 20k to go away then do it.

If the lawsuit is frivolous you do not counter-sue despite what people on the post are telling you. Your attorney will file a motion to dismiss and ask the Judge to throw out the case based on the fact it has no merit. If the case has no merit you should not have to spend too much money. Your attorney can tell you if you have any chance of having the suit tossed out. You may or may not, I don't know the facts of your case. Sue/counter-sue, depositions, mediation, all will only cost you six figures or much more in the end. It will effect every aspect of your life so get ready. Sometimes we all have to take a bite out of a you know what sandwich. Evaluate the stress and financial cost and make a decision based not on emotion but rather on whether it is worth it.

If you go to court you may win, but you will only be let off the financial hook of the amount you are being sued for. Countersuits usually fail miserably. Defendants (you) actually win most of the time (60% or better). Even if a jury finds in your favor a Judge has to make the other side pay your legal fees and I can tell you that they seldom ever do. Again, evaluate the total cost to you. Sometimes simple correspondence between lawyers can stop the bleeding. They may be seeking a fortune but could be willing to take much less.

I wish you the best in whatever avenue you decide to take. Remember one thing which is always true...the sooner the case is over and the attorney's stop the hourly billing the better off you will be. Good luck.

November 15, 2006

Karl Baldwin said:

First of all, I applaud Bruce Clay's characterizations as he pretty much hit the nail on the head.

I have a similar situation, so allow me to add my 2 cents.

Over the last 8 years, I have created 7 websites for Virginia cabin rentals or B&Bs, all located in the same county. The owners all hired me to build their websites because they had listings on my primary website from which they were getting the majority of there renters. Two clients had 4 or more cabins listed with me so it made sense to embellish their businesses by creating their own websites as well as being listed on mine.

While everybody was a competitor in a local, niche market, everyone was also aware of the other's web presence, thus making it implausible for anyone the indict me.

Anyway, I created all the sites with SEO incorporated into the designs. I told all of them that I would promote their sites with equal diligence but I also made it clear (as I do for all my clients) that I do not guarantee results; I just show the search engine positioning of my other clients as an example of my performance. I currently only perform continuous SEO work for 3 of those Virginia cabin rental websites (all 3 in Luray), plus my own website's Virginia page.

Conflict of interest one might ask? Not when all of them (mine included) are in the top 10 on page one of the major SERPs, in addition to 2 other URLs that I previously have done SEO.

I apologize for this self indulgent rant, but my point should be intuitively obvious. Designing websites for competing companies, even in the same local neighborhood, does not necessarily have any relevance to conflict of interests.

Best Regards,
Karl L. Baldwin

November 16, 2006 | url

Bob Huntsman said:

As a general rule, you are allowed to take on competing clients, unless you contractually agreed not to do so, so unless your are in a state from hell you are probably on legally solid ground. However, being on solid legal ground does you no good at all unless you defend and assert your rights.

Without knowing the text of your non compete, the exact cause of action you are being sued for, what state you are in, and additional facts not included in your post, it is difficult to "opine" with any certainty.

Speaking generally, your non-complete was a smart idea and is supposed to curtail this sort of thing. Unfortunately, the U.S. legal system allows anyone to bring suit for just about anything, and you have to defend, even with a rock solid defense. Many states (but not all) provide for a recovery of attorneys fees for the prevailing party for certain types of suits, but the problem with such provisions is you are required, at least, to (1) litigate, (2) win (3) not settle, and (4) have the other side not go bankrupt, to collect.

Whether you should defend or not is a primarily a difficult business decision, but I personally would be hard pressed to "settle" and compromise my livelihood under the circumstances you have described.

Bob Huntsman
Registered Patent Attorney & Attorney At Law

November 16, 2006 | url

Ian Parker said:

I would like to add my comments to the list of those who advocate that you defend rather than settle.

Anyone providing professional services has the right to do so freely, and unless you are obliged under contract to exclude certain other parties, then it is clearly your right to do so, or we would all see ourselves excluding whole sectors of the market because we have already done business with client A.

I could not imagine the giants of this world such as AT&T or Google putting up with this, neither should you.

Providing that you apply equal professionalism to each of your clients, and the fact that the rankings themselves are totally outside of your professional domain, would to me at least indicate that you certainly do have the right to freely trade with whomever you please.

November 18, 2006 | url

FreshPromo SEO said:

You put the phrase "taking away their business" in quotes. If this is what your four year-old client is basing their case upon, then my guess is that it will be thrown out by a judge. I'm not a lawyer, but am an expert at SEO. Higher search engine rankings are no guarantee of an increase in overall business. Their business practice is totally out of your control, which is why SEO's can never guarantee an increase in income or anything similar to clients.

Plus, SEO is guesswork. Educated guesswork of course, but never a sure thing. Every reputable expert in our field will say the same thing. If the client wants to sue the party directly responsible for dropping the rankings, they should be suing Google. And I'd like to see them try that.

November 20, 2006 | url